_______________________________ 

_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 3, 2005 

SCOTT M. CAIN, 

Plaintiff-Appellee, 

v No. 125111 

AFTER REMAND 

WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO., 

Defendants-Appellants, 

and 

SECOND INJURY FUND, 

Defendant-Appellee. 

SCOTT M. CAIN, 

Plaintiff-Appellee, 

v No. 125180 

AFTER REMAND 

WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO., 

Defendants-Appellees, 

and 

SECOND INJURY FUND, 

Defendant-Appellant. 
AFTER REMAND 

BEFORE THE ENTIRE BENCH 

TAYLOR C.J. 

At issue in this worker’s compensation case is whether 

a worker must suffer an actual amputation of a limb or body 

part in order to qualify for either specific loss benefits 

(also described as scheduled loss benefits) or total and 

permanent disability benefits. We hold that specific loss 

benefits under MCL 418.361(2) do not require an amputation. 

It is sufficient to qualify for such benefits if the limb 

or body part has lost its usefulness. Regarding total and 

permanent disability benefits under MCL 418.361(3)(b), 

which covers the loss of both legs, as with specific loss, 

if the legs have lost their usefulness, even though not 

amputated, the worker qualifies for total and permanent 

disability benefits. We therefore affirm the decisions of 

the Court of Appeals and the Worker’s Compensation 

Appellate Commission (WCAC). 

BACKGROUND 

This case was previously before us in Cain v Waste 

Mgt, Inc, 465 Mich 509, 513; 638 NW2d 98 (2002) (Cain I), 

where we summarized the facts describing plaintiff’s 

injuries as follows: 

Plaintiff Scott M. Cain worked as a truck 

driver and trash collector for defendant, Waste

Management, Inc. In October 1988, as he was 

2 
 

standing behind his vehicle emptying a rubbish

container, he was struck by an automobile that

crashed into the back of the truck. Mr. Cain’s 

legs were crushed. Physicians amputated Mr. 

Cain’s right leg above the knee. His left leg was

saved with extensive surgery and bracing. 

In February 1990, Mr. Cain was fitted with a

right leg prosthesis, and he was able to begin

walking. He returned to his employment at Waste

Management and started performing clerical 

duties. 

Mr. Cain’s left leg continued to 

deteriorate. In October 1990, he suffered a 

distal tibia fracture. Doctors diagnosed it as a

stress fracture caused by preexisting weakness

from the injury sustained in the accident. After

extensive physical therapy and further surgery on

his left knee, Mr. Cain was able to return to

Waste Management in August 1991, first working as

a dispatcher and then in the sales department. 

Waste Management voluntarily paid Mr. Cain

215 weeks of worker’s compensation benefits for

the specific loss of his right leg. MCL 

418.361(2)(k). However, there was disagreement

concerning whether he was entitled to additional

benefits. 

To understand the benefits that are at issue, it is 

necessary to review several sections of the Worker’s 

Disability Compensation Act (WDCA), MCL 418.101 et seq. 

Specific loss benefits are payable under MCL 418.361(2)(k) 

to an employee “for the loss of” a leg.1 Total and 

1

 The full text of MCL 418.361(2) reads: 

In cases included in the following schedule,

the disability in each case shall be considered

to continue for the period specified, and the

compensation paid for the personal injury shall

be 80% of the after-tax average weekly wage 

(continued...)

3 
 

(...continued)

subject to the maximum and minimum rates of 

compensation under this act for the loss of the

following: 

(a) Thumb, 65 weeks. 

(b) First finger, 38 weeks. 

(c) Second finger, 33 weeks. 

(d) Third finger, 22 weeks. 

(e) Fourth finger, 16 weeks. 

The loss of the first phalange of the thumb,

or of any finger, shall be considered to be equal

to the loss of 1⁄2 of that thumb or finger, and

compensation shall be 1⁄2 of the amount above 

specified. 

The loss of more than 1 phalange shall be

considered as the loss of the entire finger or

thumb. The amount received for more than 1 finger

shall not exceed the amount provided in this

schedule for the loss of a hand. 

(f) Great toe, 33 weeks. 

(g) A toe other than the great toe, 11

weeks. 

The loss of the first phalange of any toe

shall be considered to be equal to the loss of 1⁄2

of that toe, and compensation shall be 1⁄2 of the

amount above specified. 

The loss of more than 1 phalange shall be

considered as the loss of the entire toe. 

(h) Hand, 215 weeks. 

(i) Arm, 269 weeks. 

An amputation between the elbow and wrist

that is 6 or more inches below the elbow shall be 

considered a hand, and an amputation above that

point shall be considered an arm. 

(continued...)

4 
 

permanent disability benefits are payable “[w]hile the 

incapacity for work resulting from a personal injury is 

total,” MCL 418.351(1), and MCL 418.361(3) defines what 

“total and permanent disability” means.2 Of particular 

(...continued)

(j) Foot, 162 weeks. 

(k) Leg, 215 weeks. 

An amputation between the knee and foot 7 or

more inches below the tibial table (plateau)

shall be considered a foot, and an amputation

above that point shall be considered a leg. 

(l) Eye, 162 weeks. 

Eighty percent loss of vision of 1 eye shall

constitute the total loss of that eye. 

2

 The subsection reads in full: 

Total and permanent disability, compensation

for which is provided in section 351 means: 

(a) Total and permanent loss of sight of

both eyes. 

(b) Loss of both legs or both feet at or

above the ankle. 

(c) Loss of both arms or both hands at or 

above the wrist. 

(d) Loss of any 2 of the members or 

faculties in subdivisions (a), (b), or (c). 

(e) Permanent and complete paralysis of both

legs or both arms or of 1 leg and 1 arm. 

(f) Incurable insanity or imbecility. 

(g) Permanent and total loss of industrial 

use of both legs or both hands or both arms or 1

leg and 1 arm; for the purpose of this 

(continued...)

5 
 

relevance here are two of the definitions of total and 

permanent disability found in MCL 418.361(3)(b), “Loss of 

both legs or both feet at or above the ankle,” and MCL 

418.361(3)(g), “Permanent and total loss of industrial use 

of both legs or both hands or both arms or 1 leg and 1 arm 

. . . .” 

In Cain I, we determined that because Mr. Cain had a 

brace on his left leg that enabled him to return to work, 

he had not lost industrial use of both legs, as required by 

MCL 418.361(3)(g).3 We noted there is a difference between 

specific loss and loss of industrial use, and we “adopt[ed] 

as our own” the analysis of the WCAC in its April 1997 

opinion. Cain I, supra at 521. In accord with that 

analysis, we held that the “corrected” standard applies to 

claims for permanent and total loss of industrial use under 

MCL 418.361(3)(g), and we remanded to the WCAC “to consider 

plaintiff’s specific loss claim.” Cain I, supra at 524. 

On remand, the WCAC determined actual amputation is 

unnecessary to qualify for specific loss benefits and, 

(...continued)

subdivision such permanency shall be determined

not less than 30 days before the expiration of

500 weeks from the date of injury. 

3

 The reader is directed to Cain I for a full 

discussion of the procedural history of the case to that

(continued...) 

6 
 

because plaintiff’s leg is essentially useless, his injury 

“equated with anatomical loss.” The WCAC cited as 

authority Hutsko v Chrysler Corp, 381 Mich 99; 158 NW2d 874 

(1968), and Tew v Hillsdale Tool & Mfg Co, 142 Mich App 29; 

369 NW2d 254 (1985). Both are cases in which specific loss 

claims were allowed where there had been a loss of use, but 

not an anatomical loss. The WCAC then concluded without 

further explanation that “[h]aving shown specific loss of 

each leg, plaintiff is entitled to total and permanent 

disability benefits.” On appeal, the Court of Appeals 

majority, citing Pipe v Leese Tool & Die Co, 410 Mich 510; 

302 NW2d 526 (1981), affirmed the decision of the WCAC. 

259 Mich App 350; 674 NW2d 383 (2003). It concluded that 

each of plaintiff’s legs qualified for specific loss 

benefits (one through amputation and one through lost 

industrial use), and that these losses, when considered 

together, equaled a “loss of both legs” under MCL 

418.361(3)(b), thus entitling plaintiff to total and 

permanent disability benefits. 

Both the defendant employer and the Second Injury Fund 

sought leave to appeal. We granted both applications for 

leave, ordering the appeals to be argued and submitted 

(...continued)

point, including details of the opinions of the magistrate,

the WCAC, and the Court of Appeals. 

7 
 

together. 470 Mich 870 (2004). We directed the parties in 

both appeals to include among the issues to be briefed 

whether the “loss of industrial use” standard may be 

applied to claims of specific loss under MCL 418.361(2) and 

whether Pipe, supra, should be overruled. We further 

directed the parties in Docket No. 125180 to address the 

issues whether the WCAC exceeded the scope of this Court’s 

remand order by awarding plaintiff total and permanent 

disability benefits and whether total and permanent 

disability benefits under MCL 418.361(3)(b)(loss of both 

legs) may be awarded on the basis of plaintiff’s specific 

(anatomical) loss of one leg and his specific (industrial 

use) loss of the other leg. 

STANDARD OF REVIEW 

We review de novo questions of law in worker’s 

compensation cases. Mudel v Great Atlantic & Pacific Tea 

Co, 462 Mich 691, 697 n 3; 614 NW2d 607 (2000). 

Entitlement to worker’s compensation benefits must be 

determined by reference to the statutory language creating 

those benefits. Nulf v Browne-Morse Co, 402 Mich 309, 312; 

262 NW2d 664 (1978). As we have noted in the past, when we 

construe a statute, our primary goal is to give effect to 

the intent of the Legislature and our first step in that 

process is to review the language of the statute itself. 

In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 

8 
 

 

 

164 (1999). The Legislature has specified the proper 

approach to construing statutory language, saying in MCL 

8.3a: 

All words and phrases shall be construed and

understood according to the common and approved

usage of the language; but technical words and

phrases, and such as may have acquired a peculiar

and appropriate meaning in the law, shall be

construed and understood according to such 

peculiar and appropriate meaning.[4] 

ANALYSIS: SPECIFIC LOSS 

We turn first to the question of specific loss and 

therefore focus our analysis on MCL 418.361(2). The loss 

provision of this section repeatedly has been held to be 

intended to compensate workers who have suffered one of the 

losses enumerated in this provision, regardless of the 

effect on the worker’s earning capacity.5 Cain I, supra at 

524; Redfern v Sparks-Withington Co, 403 Mich 63, 80-81; 

268 NW2d 28 (1978). This means if a worker, for example, 

loses an arm, thumb, finger, leg, or so on in a workplace 

4 However, when a statute specifically defines a given

term, that definition alone controls. WS Butterfield 

Theatres, Inc v Dep’t of Revenue, 353 Mich 345; 91 NW2d 269

(1958). 

5

 We note that MCL 418.354(16), in providing for

coordination of social security and other benefits,

recognizes this principle, stating in part, “It is the

intent of the legislature that, because benefits under

section 361(2) and (3) are benefits which recognize human

factors substantially in addition to the wage loss concept,

coordination of benefits should not apply to such 

benefits.” 

9 
injury, specific loss benefits, as set forth in the 

schedule, will be awarded even if no time is missed from 

work. At issue here is whether a limb (here, a leg), 

crushed but not severed, is to be treated as lost, thus 

entitling the injured worker to specific loss benefits. 

Defendants argue that the word “loss” unambiguously 

means “amputation,” especially in the context of § 

361(2)(k), which expressly mentions amputation. As they 

argue it, amputation is required because MCL 418.361(2)(k) 

provides benefits for the loss of a leg by stating: 

Leg, 215 weeks. 

An amputation between the knee and foot

7 or more inches below the tibial table 

(plateau) shall be considered a foot, and an

amputation above that point shall be 

considered a leg. 

Thus, defendants assert that the amputation language, 

at least regarding legs, limits the word “loss” in the 

statute to mean that only amputations are compensable. 

Plaintiff, on the other hand, while agreeing that the 

statute is unambiguous, argues that defendants’ approach is 

flawed because it disregards the original meaning of the 

specific loss provisions when the WDCA was enacted almost a 

century ago in favor of a modern perception of the word’s 

meaning. The original meaning, plaintiff asserts, is 

controlling because, although the statute has been amended 

many times since its enactment in 1912, the word “loss” has 

10 
remained unchanged and without express qualifications or 

limitations. Plaintiff analogizes our task in determining 

the meaning of “loss” to that which we undertook in Title 

Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 522; 

676 NW2d 207 (2004), where we determined what the plain and 

ordinary meaning of “transcript” was in 1895. This 

analytical approach of plaintiff is sound. Because the 

statute itself does not define “loss,” we agree with 

plaintiff that we must ascertain the original meaning the 

word “loss” had when the statute was enacted in 1912. 

“When determining the common, ordinary meaning of a 

word or phrase, consulting a dictionary is appropriate.” 

Title Office, Inc, supra at 522. In the dictionaries from 

the era of the original legislation, the definition of 

“loss” is fairly broad: “Perdition, ruin, destruction; the 

condition or fact of being ‘lost,’ destroyed, or ruined,” 

New English Dictionary (1908); “State or fact of being lost 

or destroyed; ruin; destruction; perdition; as Loss of a 

vessel at sea,” Webster’s New Int’l Dictionary of the 

English Language (1921); “Failure to hold, keep, or 

preserve what one has had in his possession; disappearance 

from possession, use, or knowledge; deprivation of that 

which one has had: as, the loss of money by gaming, loss of 

health or reputation, loss of children: opposed to gain,” 

Century Dictionary and Cylopedia (1911). From this we can 

11 
 

see that severance is but one way a loss may occur; loss 

also occurs when something is destroyed, ruined, or when it 

disappears from use. We conclude that amputation is not 

required in order for a person to have suffered the loss of 

a specified body part. 

Having ascertained the commonly understood meaning of 

the word “loss,” our substantive analysis of its definition 

is complete. Gladych v New Family Homes, Inc, 468 Mich 

594, 597; 664 NW2d 705 (2003). Our conclusion is 

reinforced by the fact that the same meaning for the word 

“loss” is found in the cases construing late nineteenthcentury private liability insurance plans for the aid of 

injured workers that were, in part, the models for the 

body-part loss provisions of our first worker’s 

compensation act. When, in special session, the 

Legislature in 1912 passed that first act, known as 

Michigan’s “Workmen’s Compensation Act,”6

 it was the 

culmination of the efforts of the five-person Employers’ 

Liability and Workmen’s Compensation Commission appointed 

by Governor Chase S. Osborn in 1911.7 The commission had 

been formed because of what was described at the time as 

6

 1912 (1st Ex Sess) PA 10. 

7

 1911 PA 245. 

12 
 

“wide dissatisfaction” with the employer’s liability at 

common law for injuries suffered by his employees. Report 

of the Employers’ Liability and Workmen’s Compensation 

Commission of the State of Michigan, 5 (1911) (Report). 

The commission was directed to “investigate and report a 

plan for legislative action to provide compensation for 

accidental injuries or death arising out of and in the 

course of employment . . . .” Id. In its report, the 

commission, after concluding that the existing negligencebased system (1) failed to sufficiently encourage 

prevention of accidents, (2) did not protect employers 

against excessive verdicts, (3) resulted in inadequate 

compensation for injured workers, and (4) engendered 

animosity and strife, recommended a statute based on 

similar provisions already enacted in Massachusetts, 

Wisconsin, and New Jersey.8 The Legislature, with very few 

8

 These in turn were modeled after European laws that

first appeared in the mid-1800s and that were well 

established by the end of that century, swept along by

massive industrialization occurring at the same time 

throughout Europe. Harger, Worker’s compensation, a brief

history, <www.fldfs.com/WC/history.html> (accessed December

22, 2004). In this country, the first constitutional

worker’s compensation law was the 1908 Employer’s Liability

Acts, 45 USC 51-60. In 1911, the first states followed,

and by 1913, twenty-three states had comparable laws. 

Harger, supra. By 1948, all the states had at least some

form of worker’s compensation, including the territories of

Alaska and Hawaii. Harger, supra. 

13 
changes to the recommended language, briskly enacted this 

proposal as Michigan’s workmen’s compensation act less than 

three weeks after the bill was introduced. 1912 (1st Ex 

Sess) Journal of the House 13, 149-150. 

In dealing with what today is described as total and 

permanent disability, the 1912 statute stated in § 9: 

While the incapacity for work resulting from

the injury is total, the employer shall pay, or

cause to be paid as hereinafter provided, to the

injured employee a weekly compensation equal to

one-half his average weekly wages, but not more

than ten dollars nor less than four dollars a 

week; and in no case shall the period covered by

such compensation be greater than five hundred

weeks, nor shall the total amount of all 

compensation exceed four thousand dollars. [1912

(1st Ex Sess) PA 10, part II, § 9.] 

In dealing with partial incapacity, the statute stated 

at § 10: 

While the incapacity for work resulting from

the injury is partial, the employer shall pay, or

cause to be paid as hereinafter provided, to the

injured employee a weekly compensation equal to

one-half the difference between his average

weekly wages before the injury and the average 

weekly wages which he is able to earn thereafter,

but not more than ten dollars a week; and in no 

case shall the period covered by such 

compensation be greater than three hundred weeks

from the date of the injury. In cases included by

the following schedule the disability in each

such case shall be deemed to continue for the 

period specified, and the compensation so paid

for such injury shall be as specified therein, to

wit: 

* * * 

14 
 

 

For the loss of a leg, fifty per centum of

average weekly wages during one hundred and 

seventy-five weeks. [1912 (1st Ex Sess) PA 10,

part II, § 10.] 

Section 9 allowed wage-based benefits to be paid to 

workers who were totally incapacitated from work, 

regardless of the type of work-related injury that caused 

the incapacity, while § 10 provided for benefits when the 

worker was partially incapacitated. Moreover, the latter 

part of § 10, with its schedule of benefits for specific 

losses, allowed a set amount of weeks that benefits would 

be awarded when a worker suffered one of the specific 

injuries described. In doing so, it was intentionally 

patterned after the specific loss provisions of the abovereferenced employers’ private liability insurance plans, 

which were designed to provide benefits to workers injured 

on the job. Report, supra.9 

9

 The commission’s report even included in its appendix

the text of two plans “typical” at the time. Report,

supra, Appendix VII, 143-146. The “Benefit and Relief 

Plans of the Cleveland-Cliffs Iron Company” provided: 

In addition to the monthly benefit payments, other

amounts are paid for certain serious injuries, as follows: 

Loss of one arm, leg or eye, $166.66. 

Loss of both arms, legs or eyes, $500. 

Similarly, the “Benefit and Relief Plans of the Oliver

Iron Mining Company” provided: 

(continued...)

15 
 

The cases construing such insurance policies in that 

era, from Michigan and elsewhere, unmistakably indicate 

that the word “loss,” just as it did in dictionaries of the 

time, meant not just severance or amputation but also the 

destruction of the usefulness of the member. In Michigan, 

our Court in Fuller v Locomotive Engineers’ Mut Life & 

Accident Ins Ass’n, 122 Mich 548, 553; 81 NW 326 (1899), 

construing the specific loss provision in an insurance 

policy, said just this, indicating that 

where an insurance policy insures against the

loss of a member, or the loss of an entire

member, the word “loss” should be construed to

mean the destruction of the usefulness of the 

member, or the entire member, for the purposes to

which, in its normal condition, it was 

susceptible of application. 

(...continued) 

The following injuries have specified amounts, and

others in proportion to these injuries: 

(a) For the loss of a hand, twelve months’ wages. 

(b) For the loss of an arm, eighteen months’ wages. 

(c) For the loss of a foot, nine months’ wages. 

(d) For the loss of a leg, twelve months’ wages. 

(e) For the loss of one eye, six months’ wages. 

Sections 9 and 10 of the 1912 act incorporated

language similar to these insurance plans. 

16 
Simply stated, under such a policy in Michigan, no 

amputation was necessary for a loss. The rationale for not 

limiting loss just to amputation was the understanding by 

this Court and, as we will explain, by other American 

courts that the term “loss” in such policies should be 

given its ordinary and popular meaning, which was broad 

enough to include loss of usefulness. 

As the Missouri Supreme Court said on this topic, the 

word “loss” in insurance policies “was used in its ordinary 

and popular sense and [did] not mean that there should be a 

total destruction of the [member], anatomically speaking, 

but that the loss of the use of it for the purposes to 

which [the member] is adapted would be a loss of it 

. . . .” Sisson v Supreme Court of Honor, 104 Mo App 54, 

60; 78 SW 297 (1904). The Kansas Supreme Court stated it 

similarly: “The loss of a member of the body, as used in an 

accident insurance policy, unless restricted or modified by 

other language, carries the common meaning of the term 

‘loss,’ which is the loss of the beneficial use of the 

member. Obviously this may occur when there is not a 

complete severance of the member from the body.” Noel v 

Continental Cas Co, 138 Kan 136, 139; 23 P2d 610 (1933). 

The Kansas court then reinforced its holding by citing 

thirteen cases from ten other states from the late 

17 
 

 

 

nineteenth and early twentieth centuries, holding to the 

same effect.10 

Also buttressing our analysis is that, in the early 

years of the act’s existence, the decisions of the 

Industrial Accident Board (IAB), the WCAC’s predecessor, 

also construed “loss” as defined in the dictionary. That 

is consistent with its commonly understood meaning. This 

is consequential because half of the four IAB board members 

had served on Governor Osborn’s commission and had 

recommended the very “loss” language we are considering.11 

We find the interpretation these board members gave to the 

statute useful in the same way that the comments of 

10 Travelers’ Ins Co v Richmond, 284 SW 698 (Tex Civ

App, 1926); Continental Cas Co v Linn, 226 Ky 328; 10 SW2d

1079 (1928); Jones v Continental Cas Co, 189 Iowa 678; 179

NW 203 (1920); Locomotive Engineers’ Mut Life & Accident

Ins Co v Meeks, 157 Miss 97; 127 So 699 (1930); Moore v 

Aetna Life Ins Co, 75 Or 47; 146 P 151 (1915); Bowling v 

Life Ins Co of Virginia, 39 Ohio App 491; 177 NE 531

(1930); Citizens’ Mut Life Ass’n v Kennedy, 57 SW2d 265

(Tex Civ App, 1933); Sneck v Travelers’ Ins Co, 88 Hun 94;

34 NYS 545 (1895); Sheanon v Pacific Mut Life Ins Co, 77

Wis 618; 46 NW 799 (1890); Lord v American Mut Accident 

Ass’n, 89 Wis 19; 61 NW 293 (1894); Berset v New York Life 

Ins Co, 175 Minn 210; 220 NW 561 (1928); Sisson v Supreme 

Court of Honor, 104 Mo App 54; 78 SW 297 (1904); Int’l 

Travelers’ Ass’n v Rogers, 163 SW 421 (Tex Civ App, 1914). 

11 Richard L. Drake was its first secretary and Ora E.

Reaves was one of three board commissioners. Reaves 

remained on the board until at least 1920. Michigan

Official Directory and Legislative Manual, 1913-1914, 1915­

1916, 1917-1918, and 1919-1920. 

18 
 

drafting committees can be “useful interpretive aids” for 

construing statutes. See Gladych, supra at 601 n 4. The 

IAB, in Lardie v Grand Rapids Show Case Co, 1916 Workmen’s 

Compensation Cases 17, 19, in discussing loss, stated that 

“courts have uniformly construed provisions of accident 

policies insuring against the loss of a member, to cover 

cases where the usefulness of the member was destroyed by 

accident without resulting in severance or amputation.” 

Id., citing Fuller, supra at 553. Similarly, that “loss” 

in the context of worker’s compensation specific loss 

benefits did not mean only amputations, but also included 

loss of usefulness, was indicated by the IAB’s decisions in 

an unnamed case cited in Industrial Accident Bd, Bulletin 

No 3, 13 (1913);12 Rider v C H Little Co, Industrial 

12 The board stated in that case: 

The action of the surgeon in amputating a 

finger, or in failing to amputate it, or in

choosing the point of amputation is not 

controlling in all cases of this kind. Each case 

depends for its decision upon the particular

facts relating to the finger, and these might

relate to the point of amputation, or the fact

that the finger or a portion thereof had been

rendered useless without being amputated. . . .

The Board is further of the opinion that in case

no part of the finger is amputated and the injury

is such as to entirely destroy the usefulness of

the first phalange or the entire finger, in that

event the injured person has lost the first 

phalange or the finger, as the case may be, as

completely as if the same had been amputated. 

19 
 

Accident Bd, supra at 27, 29 (1913); Hirschkorn v Fiege 

Desk Co, 184 Mich 239; 150 NW 851 (1915); Purdy v Sault Ste 

Marie, 188 Mich 573, 579; 155 NW 597 (1915); Cline v 

Studebaker Corp, 189 Mich 514; 155 NW 519 (1915); Lardie, 

supra; Carpenter v Detroit Forging Co, 191 Mich 45; 157 NW 

374 (1916); Packer v Olds Motor Works, 195 Mich 497; 162 NW 

80 (1917); Adomites v Royal Furniture Co, 196 Mich 498; 162 

NW 965 (1917). 

The same can be seen in large part in this Court’s 

jurisprudence of the time. For example, in Purdy, supra at 

579, the Court affirmed the IAB’s specific loss award for a 

crushed leg.13 In Lovalo v Michigan Stamping Co, 202 Mich 

85, 89; 167 NW 904 (1918), the Court held that the claimant 

had suffered the loss of his hand where four fingers and 

nearly all the palm were amputated, saying that “the loss 

of all the palm and all of the fingers of the hand could 

. . . be reasonably considered the loss of the entire 

hand.” Indeed, the only expressly contrary case in this 

era is Wilcox v Clarage Foundry & Mfg Co, 199 Mich 79; 165 

NW 925 (1917), where the Court, in a case with difficult 

facts, determined that the specific loss provision required 

anatomical loss. The Wilcox Court made no effort to 

13 The IAB’s decision is at 1916 Workmen’s Compensation

Cases 65. 

20 
 

 

reconcile its holding with the IAB’s clearly stated 

understanding of “loss,” nor with Fuller or Purdy, but 

analogized instead to cases where the plaintiffs had 

suffered partial losses and this Court had required proof 

of complete, rather than partial, loss.14 We conclude that, 

given its outlier status, as well as the fact that the 

construction it seeks to give to the term “loss” is 

inconsistent with the original meaning of “loss” in the 

act, Wilcox was incorrectly decided. Thus, we overrule 

Wilcox so that its potentially confusing shadow will be 

removed from our case law.15 

To summarize, then, regarding this issue of the 

definition of “loss”: the definition comes from its 

commonly understood meaning at the time of enactment. The 

contemporaneous uses of the word are corroborative and 

reinforcing of this definition. 

14 Even if those cases can be read as requiring

amputation, Wilcox was flawed in a broader sense by the

fact that, rather than tracing its rationale to the act

itself, it used as a template, as one might in a common-law

case, the prior cases construing the act. 

15 We are reinforced in our notion that Wilcox is 

aberrant by the fact that the Lovalo Court, in reaching a

holding contrary to Wilcox just one year later, left 

unaddressed the continuing strength of Wilcox, suggesting

that the Court considered it confined to its facts. 

21 
 

Defendants assert that, even given this conclusion, 

the 1927 amendments forever altered the definition of 

“loss.” In 1927, the Legislature, for the only time in the 

twentieth century, consequentially amended the specific 

loss section of the statute by adding to the provision 

regarding a leg the language: “An amputation between the 

knee and foot six or more inches below the knee shall be 

considered a foot, above this point a leg[.]”16 1927 PA 63. 

Keying off of this amendment, defendants urge that this 

language implicitly was designed to alter any previously 

broad understanding of the word “loss” so that after the 

amendment there could be no specific loss without an 

amputation. We think this explanation insufficiently 

appreciates that the amendment came in the wake of a series 

of cases where this Court had made debatable calls on the 

nature of the loss after an amputation.17 That is, at what 

16 Similarly, the amendment added to the provision for

an arm, “An amputation between the elbow and wrist 6 or

more inches below the elbow shall be considered a hand,

above this point an arm.” 

17 Stocin v C R Wilson Body Co, 205 Mich 1; 171 NW 352

(1919) (holding that a claimant had lost his arm, not just

his hand, where it was severed below the elbow and the

upper arm was atrophied), Curtis v Hayes Wheel Co, 211 Mich

260; 178 NW 675 (1920) (holding that the claimant had lost

just a foot where his amputation occurred four to five

inches below the knee), and Reno v Holmes, 238 Mich 572;

214 NW 174 (1927) (holding that a claimant had lost his

(continued...)

22 
 

point on the limb had a loss become not just of a hand but 

of an arm, not just of a foot but of a leg? We believe the 

goal of the amendment was to bring certainty to this 

discrete set of determinations once there was an 

amputation. It is hard to conclude otherwise, given that 

the Legislature, in its amendment, did not expressly alter 

or redefine the word “loss” itself and especially given 

that word’s quite clear meaning in the dictionaries of the 

time as well as the above-referenced decisions of the IAB 

and this Court. Moreover, this Court’s leading 

postamendment decision in the 1930s on the issue of loss18 

is consistent with this understanding that the 1927 

amendment was not intended to reverse the holdings of the 

IAB and this Court on what is a loss. 

This dominant theme of our case law, that loss does 

not require amputation, can be seen throughout the midcentury, albeit with some false starts.19 Later in the 

(...continued)

leg, not just his foot, where it was severed 51⁄2 inches

below the knee). 

18 See Rench v Kalamazoo Stove & Furnace Co, 286 Mich

314; 282 NW 162 (1938), where the Court allowed an award

for loss of two hands where most of the plaintiff’s fingers

had been severed and he had suffered a total loss of use of 

both his hands. 

19 In the middle of the century, with Hlady v Wolverine

Bolt Co, 325 Mich 23; 37 NW2d 576 (1949), as well as Utter 

(continued...)

23 
 

century, in Pipe v Leese Tool & Die Co, 410 Mich 510; 302 

NW2d 526 (1981), the Court correctly determined, consistent 

with the original understanding of the act and the earlier 

cases we have discussed, that amputation was not a 

prerequisite to a “loss.” 

Pipe, however, in a phrase used frequently in these 

cases, described this loss of usefulness as “loss of the 

industrial use . . . .” Id. at 527. The phrase “loss of 

industrial use” does not appear anywhere in the specific 

loss provisions, and seems to have been intended as 

judicial shorthand to describe the condition of the injured 

member from the standpoint of its use in employment. 

However, this description causes confusion because it does 

not adequately capture the proper standard, which is that 

specific loss is to be determined without reference to the 

plaintiff’s earning capacity or ability to return to work. 

That is, it is paid if the loss has been incurred and it is 

not relevant whether the worker can work after the loss. 

(...continued)

v Ottawa Metal Co, 326 Mich 450; 40 NW2d 218 (1949), and

Barnett v Kelsey-Hayes Wheel Co, 328 Mich 37; 43 NW2d 55

(1950), this Court decided cases contrary to this original

understanding of the specific loss provisions. But these 

cases are inconsistent with the proper understanding of the

statute and we note that they were hesitatingly followed,

if at all, and Hlady was expressly overruled. Mitchell v 

Metal Assemblies, Inc, 379 Mich 368, 380; 151 NW2d 818

(1967). 

24 
 

 

Miller v Sullivan Milk Products, Inc, 385 Mich 659; 189 

NW2d 304 (1971); Shumate v American Stamping Co, 357 Mich 

689; 99 NW2d 374 (1959). We believe it was this concept 

that the Pipe Court was attempting to articulate and we 

clarify by means of this opinion that holding. 

To be clear, we are endeavoring here not to craft a 

new standard, but to articulate clearly the standard 

enacted in 1912. We find that the original understanding 

the word “loss” carried when the WDCA was enacted was its 

plain and ordinary meaning, consistent with how it had been 

construed in the context of insurance law. Thus, “loss” 

includes not only amputation but also loss of usefulness.20 

It was the intent of the drafters to write into the statute 

a word that was expansive enough to cover both situations 

and the words and language they chose conveyed this. 

Moreover, in our case law, this Court has with considerable 

consistency, albeit not unfailingly, upheld this 

construction. We do so again today, believing as courts 

have before us that the meaning we give to the word “loss” 

in MCL 418.361(2) is the meaning originally intended. 

20 In Pipe, supra at 530, and again in Cain I, supra at 

524, we referred to this as anatomical loss or its 

equivalent. 

25 
Defendants’ approach would require us to ignore the 

statutory drafters’ and enactors’ turn-of-the-twentiethcentury understanding of the common and approved meaning of 

“loss” in favor of a purportedly different contemporary 

understanding, divorced from its roots. This we cannot do. 

We are not free to substitute any other nonstatutory 

definition of a word or term for the meaning it 

indisputably had in 1912, and has maintained for almost a 

century. This duty traces to the simple notion that we are 

to construe a statute “in the light of the circumstances 

existing at the date of its enactment, not in the light of 

subsequent developments. . . . ‘The words of a statute must 

be taken in the sense in which they were understood at the 

time when the statute was enacted.’” Wayne Co Bd of Rd 

Comm’rs v Wayne Co Clerk, 293 Mich 229, 235-236; 291 NW 879 

(1940), quoting 25 RCL, § 215, p 959. We therefore hold to 

the original meaning of the word “loss” in the specific 

loss provisions: it does not require severance and there 

can be a “loss” where the claimant suffers the loss of 

usefulness of the member. 

In addition, we conclude that the WCAC properly 

applied the “uncorrected” standard. We discussed in Cain 

I, supra at 521-523, the propriety of applying the 

“uncorrected” standard to specific loss claims and the 

26 
 

“corrected” standard to total and permanent disability 

claims. We reaffirm that rule today. 

The WCAC found the damage to Mr. Cain’s left leg 

“equated with anatomical loss and that the limb retains no 

substantial utility.” The WCAC’s factual finding is, in 

essence, that he lost the usefulness of his leg. Because 

that factual finding is supported by competent evidence in 

the record, it must be affirmed. Mudel, supra at 701. The 

Court of Appeals erred when it grafted a loss of industrial 

use standard onto the factual findings of the 

administrative tribunal. Nonetheless, it reached the 

correct result with regard to plaintiff’s benefit 

eligibility. Accordingly, plaintiff is eligible for 

specific loss benefits for the loss of his left leg. 

ANALYSIS: TOTAL AND PERMANENT DISABILITY 

We next turn to analyze whether the WCAC correctly 

allowed plaintiff benefits under the total and permanent 

disability provisions, MCL 418.361(3). Our task in 

interpreting the Legislature’s work is, if possible, to 

read the seven eligibility requirements in § 361(3) so as 

to read none of them out or as an unnecessary duplication 

of another. In particular, we must endeavor to harmonize 

the three provisions concerning legs and to read them in a 

way that does not make any of the language surplusage. 

Jenkins v Patel, 471 Mich 158, 167; 684 NW2d 346 (2004); 

27 
 

State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 

142, 146; 644 NW2d 715 (2002). In short, we read the words 

in a statute together, to harmonize the meaning of the 

clauses and give effect to the whole. G C Timmis & Co v 

Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003). 

Defendants argue that we cannot construe “[l]oss” in § 

361(3)(b) to mean less than amputation because then cases 

of lost industrial use would fall under both § 361(3)(b) 

and § 361(3)(g), rendering the latter surplusage. We 

disagree. We find the proper construction of the word 

“[l]oss” in § 361(3)(b) is that it has the same meaning 

given it in § 361(2).21 This conclusion is unsurprising, we 

believe, given the juxtaposition of §§ 361(2) and 361(3), 

which is itself a compelling reason to give them the same 

meaning. See, e.g., Sibley v Smith, 2 Mich 487, 491 

(1853). Furthermore, doing so, as we will explain, causes 

no part of § 361(3) to be duplicative or nugatory. Dealing 

with § 361(3)(b) first, we find that using this definition 

of loss means that benefits are payable under this section 

not only when there is anatomical loss, but also when the 

limbs have no practical usefulness. Section 361(3)(g), on 

the other hand, as we discussed in Cain I, with its 

21 We note that this meaning would also apply in §§

361(3)(c) and 361(3)(d). 

28 
reference to permanent and total loss of industrial use, 

calls the fact-finder to look to wage-earning capacity and 

the injured worker’s ability to function in industry. As 

is apparent, these words demand something distinct from 

§ 361(3)(b)’s simple inquiry regarding whether the legs or 

feet are amputated or have no practical usefulness. This 

means that what is covered under § 361(3)(b) may not be 

covered under § 361(3)(g). Stated more formally, 

§§ 361(3)(b) and 361(3)(g) cover different things and 

defining loss as we have here does not make either 

provision nugatory. An example may make this distinction 

clearer. If the legs are rendered useless but can be 

braced so as to make the performance of the job possible, 

there has been loss under § 361(3)(b) but no loss of 

industrial use under § 361(3)(g). This worker, indeed like 

Mr. Cain, would under this reading qualify for total and 

permanent disability benefits under § 361(3)(b) but not 

§ 361(3)(g). Conversely, a worker whose legs have basic 

function, i.e., are practically useful, but whose legs have 

no industrial use even if braced (such as a ballerina), 

would qualify under § 361(3)(g) but not § 361(3)(b). 

These examples limn that the “corrected” standard does 

not apply to § 361(3)(b), unlike § 361(3)(g). The reason 

is, as we explained in Cain I, that § 361(3)(g), with its 

utilization of permanent and total loss language, compels a 

29 
 

 

conclusion that if the condition is correctable, it is not 

permanent and total. Cain I, supra at 519-520. In fact, 

when this language appears elsewhere in § 361(3), such as 

in §§ 361(3)(a) and 361(3)(e), the doctrine of 

correctability also applies. Because there is no such 

permanent and total loss triggering language in 

§ 361(3)(b), it follows that the requirement of looking to 

correctability is absent.22 

In sum, Mr. Cain has clearly suffered the loss of his 

amputated right leg and the WCAC found that his left leg 

has “no substantial utility.” That is, his leg has no 

practical usefulness. Thus, he has suffered a “loss of 

both legs” and falls within § 361(3)(b), qualifying for an 

award of total and permanent disability benefits under that 

provision.23 Accordingly, the WCAC and the Court of Appeals 

decisions are affirmed.24 

22 Again, §§ 361(3)(c) and 361(3)(d) are similarly

worded. 

23 We have read the concurrence and, to preclude

potential confusion, only note that its conclusion is 

identical to ours. 

24 We also conclude that, although the WCAC made an

error of law in its interpretation of § 361(3)(b), it was

properly within its scope on remand to reach legal

conclusions based on its reassessment of the facts. 

Modreski v Gen Motors Corp, 417 Mich 323; 337 NW2d 231

(1983). While the WCAC was precluded from reaching a

(continued...)

30 
 

CONCLUSION 

In conclusion, we find that Mr. Cain has suffered the 

specific loss of his left leg under MCL 418.361(2) and that 

he qualifies for an award of total and permanent disability 

benefits under MCL 418.361(3)(b). Therefore, we affirm the 

decisions of the Court of Appeals and the WCAC. 

Clifford W. Taylor

Michael F. Cavanagh

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman 

(...continued)

decision contrary to that of this Court, Cain I did not 

address the question whether plaintiff had suffered total

and permanent disability under § 361(3)(b). Although the

WCAC’s determination on remand that he met the requirements

of § 361(3)(b) had the opposite outcome from its initial

determination that he was not qualified under § 361(3)(g),

its finding was based on a different legal theory. We 

conclude that it did not err in addressing legal questions

raised by its new factual determination. 

31 
_______________________________ 

_______________________________ 

S T A T E O F M I C H I G A N 

SUPREME COURT 

SCOTT M. CAIN, 

Plaintiff-Appellee, 

v No. 125111 

AFTER REMAND 

WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO., 

Defendants-Appellants, 

and 

SECOND INJURY FUND, 

Defendant-Appellee. 

SCOTT M. CAIN, 

Plaintiff-Appellee, 

v No. 125180 

AFTER REMAND 

WASTE MANAGEMENT, INC. AND TRANSPORTATION INSURANCE CO., 

Defendants-Appellees, 

and 

SECOND INJURY FUND, 

Defendant-Appellant. 

AFTER REMAND 

WEAVER, J. (concurring). 
 

I concur in the result of the majority opinion and its 

conclusions that plaintiff suffered a specific loss of his 

left leg under MCL 418.361(2)(k) and that he qualifies for 

an award of total and permanent disability benefits under 

MCL 418.361(3)(b). The word “loss,” as used in both 

subsections of the statute, includes not only amputation 

but also those situations in which there is a loss of the 

usefulness of the limb or member.1 As noted by Chief 

Justice Taylor, the Worker’s Compensation Appellate 

Commission (WCAC) essentially found that on these facts, 

plaintiff lost the usefulness of his left leg and that he 

accordingly was entitled to specific loss benefits for the 

loss of his left leg under MCL 418.361(2)(k). Ante at 27­

28. There is competent evidence to support the WCAC’s 

factual finding and we must defer to the WCAC on this 

finding. Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 

691, 703; 614 NW2d 607 (2000). Further, plaintiff has 

suffered a “[l]oss of both legs” under MCL 418.361(3)(b) 

because his right leg has been amputated and he has lost 

the usefulness of his left leg. Consequently, he is 

entitled to total and permanent disability benefits. 

1

 Dictionary definitions of the word “loss” include:

“failure to preserve or maintain” and “destruction, ruin.”

Random House Webster’s New College Dictionary (1997). 

2 
 

 

Therefore, I agree that the decisions of the WCAC and Court 

of Appeals should be affirmed.2 

Elizabeth A. Weaver 

Marilyn Kelly 

2

 While I agree with some of the basic conclusions of

the majority, as should be evident from the fact that I am

concurring separately, I do not sign on to all of the

lengthy analysis on which the majority relies to support

its conclusions. 

3